PAUSD girds for lawsuits in two cases, signals possible wider scope

After two abortive attempts to discuss PAUSD civil rights violations out of public view, the school board is set for a closed session Friday to discuss "significant exposure" to liability in two cases. See Web Link.

Board of Education president Dana Tom is refusing to provide details under a state law that allows secrecy when discussing facts that are not yet known to potential plaintiffs. The use of this Brown Act provision, intended to allow the board to assess litigation exposure without setting off new lawsuits, raises the prospect of other cases not yet disclosed.

PAUSD is currently the subject of five complaints by parents to the US Department of Education Office for Civil Rights (OCR). The first resulted in a finding that the district violated federal law in failing to protect a disabled child from harassment. Another case resulted in a settlement agreement between OCR and the district over 504 procedures. Three complaints of race and disability discrimination are still pending.

PAUSD is also conducting an investigation under Title IX of possible sexual harassment and discrimination at Paly, following the publication of an article on "rape culture" in a student magazine.

Tom's two previous attempts to schedule closed sessions on the OCR matters both ran afoul of the Brown Act, the state's open meetings law. The first was cancelled "on advice of counsel." The second was cancelled after a story in Palo Alto Online pointed out that the agenda lacked a required disclosure of the facts to be discussed.

Tom has so far declined to discuss the civil rights violations at a regular meeting of the Board of Education, despite public commitments to do so. The most recent such promise was at the May 7 school board meeting.

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Comments (37)

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Posted by Meiomi
a resident of Gunn High School
on May 23, 2013 at 7:35 am

PAUSD is getting a good dose of long-accumulated karma. Many graduates of the system are glad to see this finally happen, and they feel vindicated.

Posted by Oldtimer
a resident of Evergreen Park
on May 23, 2013 at 9:15 am

This story misses a few points. Barb Mitchell is the school board VP and also decides the agenda with Dana Tom. The two of them published an editorial criticizing OCR so they definitely see eye to eye on this. Barb particularly has a strong libertarian streak and just doesn't think the federal or state government should get involved in the schools even for civil rights.

Also it's possible that Tom and Mitchell are writing the agenda this way to avoid saying what they want to talk about, but when they get in the room they will talk about the existing OCR cases. There are no minutes for closed meetings. The parents in the existing cases know what happened to their kids so there is no actual basis for this Brown Act exemption, but as I said there is no real enforcement once the doors are closed.

The real point is that we shouldn't have to play cat and mouse with our own school board, but there you go.

Posted by just saying
a resident of Another Palo Alto neighborhood
on May 23, 2013 at 11:21 am

You - "signals possible wider scope...raises the prospect of other cases not yet disclosed." Or not. Couldn't they just be discussing facts that relate to the few OCR cases already underway?

You - "The first [closed board meeting] was cancelled "on advice of counsel." Is there something suspect about that? Maybe the district's attorney needed more information before charging the board for a meeting.

You - "The second was cancelled after a story in Palo Alto Online pointed out that the agenda lacked a required disclosure of the facts to be discussed." Ditto. Doesn't the law say that facts need not be disclosed?

"Couldn't they just be discussing facts that relate to the few OCR cases already underway?". The agenda specifically says that they are discussing "facts and circumstances" that are not known to potential plaintiffs. In the existing OCR cases, the potential plaintiffs already know what happened to their children. It's possible that there are as yet unknown facts (about the actions of district staff that if known would produce more liability) but it seems more likely to me that these are new situations where the parents haven't yet complained. But without more information we can't be sure, which is why I wrote about the possibility rather than the certainty. Readers can judge based on the facts we have.

"Is there something suspect about [cancelling the meeting on advice of counsel]? Maybe the district's attorney needed more information before charging the board for a meeting." Dana Tom didn't say that the lawyer needed more time to prepare, and the meeting notice was insufficient under the Brown Act. For me that is quite clear but again readers can decide.

"[About the second cancelled meeting], doesn't the law say that facts need not be disclosed?" No, the law says the facts have to be disclosed unless the agenda cites the section of the Brown Act that this one does.

Posted by Bob Whalen
a resident of College Terrace
on May 23, 2013 at 5:51 pm

Nice work, Curious. People are getting worried.

It's a good idea to dig into the closed meetings. Coupled with the lack of any public discussion, it raises the question of why Tom and Mitchell are so anxious to avoid public scrutiny. One answer: people go to school board members for help. The family in the first case apparently went to board meetings repeatedly to complain. Board members should have made sure that the right procedures were followed, but didn't bother. No wonder Townsend told the Weekly she didn't want any public investigations.

However, the most interesting closed meeting is one that you missed, the one that actually happened. On February 26, Laurie Reynolds, the district's attorney, met with the board in closed session about the litigation risk from the first case. A few hours later, she gave a public presentation that the Weekly described as "spin," "misleading," and "obfuscation." She made a bunch of inaccurate statements about the investigation, about the law, and about OCR's procedures, all calculated to show that the OCR investigation and finding was no big deal.

The Weekly said that she "misled the board". But the board didn't seem to care. Reynolds asked Skelly if she should answer questions from the press about the variance between her statements and reality. Skelly told her no, and copied the board members.

Why didn't the board care? Maybe Reynolds didn't actually mislead the board (her client) after all. Maybe she told them exactly what she was going to say in that earlier closed session. That would make Reynolds a lawyer who asked permission and took direction, rather than one who put her professional reputation on the line by misleading her client.

Posted by sara
a resident of Another Palo Alto neighborhood
on May 23, 2013 at 7:33 pm

I cut and paste from our school newsletter:

Every spring, the Palo Alto School District conducts a Superintendent Survey to hear what the community has to say about how the school district is doing. Please take the time to complete the survey. Your opinions matter. Please complete the survey by Tuesday, June 4.Web Link

Posted by Just wondering
a resident of Green Acres
on May 23, 2013 at 8:45 pm

How is it that the board is only discussing two cases now? Didn't they give notice for 4 cases the last two times they failed in giving the public proper notice about these agenda items? Did they suddenly decide they are free and clear of exposure in two of the cases? What is the scoop?

Posted by just saying
a resident of Another Palo Alto neighborhood
on May 24, 2013 at 7:12 am

Curious: "The second [closed board meeting] … agenda lacked a required disclosure of the facts to be discussed… the law says the facts have to be disclosed unless the agenda cites the section of the Brown Act that this [third closed board meeting] does."

I don’t see a "must-disclose-facts"-unless-Brown-Act-section-is-mentioned rule.

If there is litigation (which is what that second agenda item said), all that must be done is ID the litigation - by title or in another way - and only if that would not jeopardize the board's position. In that agenda post, the Board IDed the claims by number. Anyway, it doesn’t matter since there was no closed session so no Brown Act to invoke.

If litigation is just anticipated (which is what this week's agenda item says), facts not known to the plaintiffs need NOT be shared. (Brown Act: "(e)(1) Facts ... which the local agency believes are not yet known to a potential plaintiff or plaintiffs... need not be disclosed."). As you say, "it's possible that there are as yet unknown facts" so no problems with this one either.

Regardless, the Brown Act says that privacy laws must be honored. Given that cases relate to students, sure seems that there’s not much the board could share even if it wanted to. The Board is REQUIRED NOT TO SHARE, which is the opposite of your claim that the board “is REFUSING to provide details under a state law that ALLOWS secrecy.”

"I don’t see a "must-disclose-facts"-unless-Brown-Act-section-is-mentioned rule." See the Brown Act, at 54956.9(e)(2), where it says that explicitly. The section that today's agenda item is referring to is 54956.9(e)(1).

"If there is litigation (which is what that second agenda item said), all that must be done is ID the litigation - by title or in another way." There is no announced litigation involving any of these OCR claims. The second cancelled closed session referred to OCR complaint numbers, which aren't litigation.

I agree there is no problem with having a closed session if it is discussing facts not known to plaintiffs that carry a significant risk of litigation. Since the plaintiffs in the existing cases know what happened to their children, that raises the possibility of other cases not yet known. (It also raises the possibility that there is other misconduct by district staff not yet known to plaintiffs in existing cases, so that is another possibility).

As to privacy, it is certainly possible to describe facts without mentioning identifying information (such as the school where the child is attending).

In summary, I think it is exactly right to say that the board's previous attempts to schedule closed meetings ran "afoul of the Brown Act", since they were not properly noticed under the Brown Act. Had they held those meetings, they would have been violating the Brown Act. But as you point out, they cancelled them instead.

Posted by Chris Zaharias
a resident of Crescent Park
on May 24, 2013 at 9:07 am

Bullying = wrong
Suing PAUSD = wrong, or at least a horribly wasteful, corrosive means to an end

Wrong + Wrong = ?

If my child ever bullies anyone in or out of school, please, parent, come to me and I promise to deal with it quickly & decisively. Likewise, if anyone bullies my kid, I'll deal with it myself just as quickly & decisively.

Paragraph (e) does kick in for this 3rd meeting which is under (d)(2) (anticipated litigation), but (e)(1) says there is no need to disclose something the plaintiffs don't know.

Hard to believe that the plaintiffs know all the facts. How could they? Have they deposed folks and engaged in extensive discovery? If so, wouldn't they be in litigation which brings you back to (d)(1) - no disclosure needed?

You said if it relates to this case it must be about misconduct. Not necessarily. It could be about what was done correctly.

You say it must be about new cases. Not necessarily either. Again, it could simply be about things the current plaintiffs don't know - a non-conspiracy theory, easy and likely explanation.

Ergo, since (e)(2) is not at play here, there is no "must-disclose-facts"-unless-Brown-Act-section-is-mentioned rule."

You should reread my previous comment. The agenda for the 2nd session mentioned the existing litigation exception, but didn't mention existing litigation (it instead mentioned OCR complaints).
The "unknown facts" have to be facts that if known to the plaintiff would result in increased litigation risk for the district. Meeting in secret to discuss "what was done correctly" doesn't fall under this exemption.
I didn't say it "must be about new cases." Please reread my first response to you: "It's possible that there are as yet unknown facts (about the actions of district staff that if known would produce more liability) but it seems more likely to me that these are new situations where the parents haven't yet complained. But without more information we can't be sure, which is why I wrote about the possibility rather than the certainty. Readers can judge based on the facts we have."
But of course you are free to reach whatever conclusions you like, since you are also a reader -- for which I thank you!

Posted by Not the wild west
a resident of Crescent Park
on May 24, 2013 at 8:29 pm

Chris Zaharias is missing the key point: the job of the school district is to protect the right of children to receive a public education free of discrimination on the basis of their race, gender, ethnicity, or disability. If PAUSD fails to do that, despite repeated pleas from parents, the right thing is not to take the law into their own hands (whatever that would actually mean). It's to seek help from the federal government. Don't criticize parents who are driven to that point.

Posted by Happy Someone is Curious
a resident of Stanford
on May 24, 2013 at 10:37 pm

@Chris Z: I agree with "Not the wild west". Apparently Chris Z. has never experienced the angst of having their precious child experience a living hell every day with no help in stopping the bullies. Until you have walked in the other parent's moccasins I would recommend not criticizing those parents who have been forced to take the only remedy that might effect a change. I am personally glad that the family of the student whose developmentally disabled child was repeatedly bullied (unbelievably to the point of being punched in the face or so the news has stated)approached the Office For Civil Rights to help them get a resolution for their student's situation.

@Fred: The real spin artists are the superintendent, his legal staff and the board (spinning by failure to even address the issues). Supt. Skelly was trying to have 150K of your money (assuming that you are a PA Taxpayer) go towards hiring a PROFESSIONAL spin artist to try and do damage control. Talk about Fox News! Thank God that the public has spoken about how they feel about this position. I was appalled myself when I heard about this. Also, I don't know whether the attorney came up with her BS with or without help from Kevin and company.

@Chris Z:

Bullying = DEAD WRONG EVERY TIME

Suing PAUSD = RIGHT especially if it leads to a student getting help where it should have been offered immediately. RIGHT and at best a very good use of a process that will prevent further law suits if the district would just pay attention, straighten up and FLY RIGHT. The corrosion factor has come at the hands of the people at the Churchill office. Let's face it!

WRONG=RIGHT if you do the math correctly.

Dr. Skelly and Board (I know you are probably reading this) please do the math yourself and start helping our students until too many more skeletons come out of the closet. We can't afford you anymore Dr. Skelly. I respectfully ask you to please resign.
Wrong + Wrong = ?

Posted by village fool
a resident of another community
on May 24, 2013 at 11:55 pmvillage fool is a registered user.

@Curious - Thank you! Please, continue. Details are crucial. The details you provided as to the ongoing/current issues had me address Ken Dauber, extending my open address to form a Shadow board in the hopes of investigating past events/details. I have posted the following:
Dear Mr. Dauber - I have addressed you more than two months ago calling to form a PAUSD Shadow board. Seemed to me, then, that investigation was not about to happen.
"Villager" wrote above that - "Scandals like this one have a rhythm. Typically there is the revelation, the outrage, the demands for dismissals. If there is a prompt fact-finding, it can defuse community suspicion and anger. Delay creates the appearance of cover-up whether it is the reality or not..." It was only the info related to the second (or third? or forth?) OCR investigation, and other inputs such as those provided by "Curious", that kept these issues on the public agenda. I am more convinced than prior that such investigation needs to be totally independent.
The latest info as to the closed board sessions dealing with litigation had me wonder - Who are the board member serving? Info about the first OCR case revealed that the parents tried to contact the board members, seeking help. Seems that a closed session could be about a case where board members were contacted by community parents who ended addressing the OCR. I am wondering, simply - on what side are the board members? Closed session makes it clear that the board sides with the district officials - anyways, always. Should concerned parents try to contact the board members regarding concerns they have, knowing that the board always sides with the district officials? Conflict of interest? Seems to me that a transparent environment, where best practices are the law, would have spared those issues, and have the kids better served. That was the initial reason of my address, above. Seems to me that institutional by-standing, atmosphere where fear of retaliation seems to be affecting actions, was not established in one day, or one year. Seems to me that no correction, or healing can start prior to understanding what went wrong, why. Seems to me that the Ohlone event presented community members trust. I have suggested the Shadow board as a symbolic statement, and hopefully a way to start to investigate until any other formal procedure may take place. Possibly there are other ways. Hopefully there is a way to look seriously, continuously into issues, without having the OCR giving painful reminders. Link: Web Link

"Dear Mr. Dauber - I have addressed you more than two months ago calling to form a PAUSD Shadow board. "
I agree with Village Fool. Ken needs to formalize his and his group's opposition to PAUSD board and staff.

Posted by Well played
a resident of Another Palo Alto neighborhood
on May 25, 2013 at 10:18 am

"gop" 's comment is a perfect example of the problem we are facing. Faced with requests for transparency from Dauber, the Weekly, others online and at board meetings; strong negative reaction to hiring a spin doctor; federal findings and investigations, etc. -- what is the reaction of PAUSD insiders?
Circle the wagons, draw the blinds, hunker down, mutter darkly about the "opposition". Skelly has handed the board a shovel, and rather than handing it back, they are hard at work digging a hole.

Posted by gop
a resident of Embarcadero Oaks/Leland
on May 25, 2013 at 10:40 am

"Wll Played" comments are a perfect example of what is wrong. it's easier to be destructive and take pot-shots from the side and couch it in terms like "requests for transparency".
Just like the GOP, failed candidates take delight in being obstructive instead of working with the district. They just want to see the office fail regardless who they hurt. What is wrong with "Fool's" request to formalize this opposition?

Posted by Well played
a resident of Another Palo Alto neighborhood
on May 25, 2013 at 11:23 am

@gop. Actually, by "requests for transparency" I actually mean requests for transparency. That seems warranted. PAUSD is a public agency. The superintendent concealed a federal investigation and finding of noncompliance with federal law. The report, when the press finally dug it out, indicates that several senior district staff, including Skelly, Charles Young, Holly Wade, a principal, an assistant principal and maybe others, didn't follow either district procedures or federal or state law. Why? What happened? How many other kids and parents have been treated this way?

According to gop, nobody is allowed to ask those questions without being "obstructive" -- a great Orwellian turn of phrase, since Skelly and the school board have obstructed any information from reaching the public. Now district insiders are bleating about reasonable inquiries into the public's business, or sending out embarrassingly maudlin declarations to every parent in the district that they have trouble getting out of bed in the morning.

But feel free to draw up enemies lists and fulminate against nattering nabobs of negativism and the press. You've got some historical precedents you can draw on for inspiration.

"Wll Played" wants you to think they are being reasonable by a single request. Building up his strawman, he fails to mention the years of "requests" (read demands) that the group has placed on the district. This is the latest in a long, long, long stream of never ending "requests".
Stop messing about and formalize your opposition. About time you put out your agenda and stood behind it [portion removed by Palo Alto Online staff.] Follow "fools" advice.

Posted by WCDPBA member
a resident of Midtown
on May 25, 2013 at 3:23 pm

The We Can Do Better agenda has always been public. Here it is (from a flyer distributed at the parent education meeting that we cosponsored with the CAC, PASS and SEAN):

We are a group of parents and community members committed to schools in Palo Alto that support the social and emotional well-being of our community’s children. We strongly believe that learning and health go hand-in-hand.

Over the last several years, we have:

Worked to reduce unnecessary academic stress in PAUSD schools, by advocating for the school-based components of our community’s Project Safety Net plan.
Worked to move finals before winter break to guarantee our students a work free break.
Initiated a major district effort to improve the quality of counseling for students at Gunn High School, and served on the Gunn committee to plan the change.
Advocated for and served on the PAUSD committee that set time limits on homework, for the first time.
Demonstrated with data that less affluent and minority students are not as well served in PAUSD as in other districts, and supported college readiness for all students.
Worked for transparency and accountability in the governance of our district.

Our goals for now and the coming year are to:

Ensure that PAUSD addresses the issues raised by the OCR findings and investigations publicly and transparently.
Bring counseling reform at Gunn to a successful conclusion.
Reduce stress from test and project scheduling.
Continue to advocate for the Project Safety Net plan.
Work for online homework access for all students and parents.
Monitor implementation of homework time limits and other reforms we supported.
Continue to press for a more transparent and accountable school board.

Posted by village fool
a resident of another community
on May 25, 2013 at 3:36 pm

@retired teacher: you wrote - "The power of the small minority and its excesses seemed to have invite unexpected visitors into our neighborhood this week..."
I am sorry. I did not understand. Who were the unexpected visitors this week? What is "our neighborhood"? Who is "our"?
Can you please, educate me? Also - you identify yourself as a retired teacher. Would you kindly share what did you teach? where?

Posted by Retired Teacher
a resident of Duveneck/St. Francis
on May 25, 2013 at 5:16 pm

I just heard from the staff there were visitors. If the staff are lying, that's not my problem. Good people should be able to disagree with others without being vilified, regardless of where they are coming from or their "name."

Posted by village fool
a resident of another community
on May 25, 2013 at 5:58 pmvillage fool is a registered user.

Woops, I just missed. I learned this thread was just locked. I had to log in when I tried to submit the following:
@Retired Teacher - I totally agree with your "Good people..."
I am sorry. I still do not understand. I asked above about visitors? neighborhood? our? Could you please educate at least as to "our"?
@Let me help - Thank you for stepping in! May I just ask not to use adjectives to describe other postings? This thread was started by "Curious" - most of "Curious" informative threads were locked, and made available only to those sign in. I am not really sure about the reasons. Possibly some adjectives were not approved? Just guessing, I do not know.
My Open Address to Ken Dauber - Web Link - was also maid available only to those who are signed in. That proved to stop the conversation. Fear of retaliation was mentioned many times.
@Curious - Thank you for digging in! please, continue. Systemic issues..

Posted by village fool
a resident of another community
on May 25, 2013 at 8:42 pmvillage fool is a registered user.

I did not realize when I posted my most recent comment, above that "Let me help" posing were removed, completely. I commented, above about one adjective. The issue of locked threads was discussed many times.
While I totally agree that the one who pays the bills, maintain this board has the say - I do not understand. Especially when posting anomalously. I think that anyone who posts anonymously, needs to be able to take some other anonymous opinions, criticism and adjectives. Personally, I would be interested in all - except for personal info about individuals. I think it is in the best interest of all to know what is out there. I just re-read my Open Address thread - many comments were removed. I can not understand the reason of stopping the discussion here, on my open address thread, and many others.

Posted by village fool
a resident of another community
on May 27, 2013 at 10:43 pmvillage fool is a registered user.

@Curious - you wrote in a parallel thread you started today: "I am a citizen who believes that a better informed community is a good thing and I want to contribute to that. I am certainly not an attorney, as I have said. I leave it to my readers to draw their own conclusions based on the facts I and others present. I welcome your comments and your participation in this effort!..."
Thank you again, for taking the time to inform us!

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